The opinion of the court was delivered by: Magistrate Judge Blewitt
REPORT AND RECOMMENDATION
Plaintiff, Christian Jones, formerly an inmate at the Luzerne County Correctional Facility,
Wilkes-Barre, Pennsylvania ("LCCF"), and currently an inmate at SCI-Green, Waynesburg, Pennsylvania, filed this civil rights action with this Court, pursuant to 42 U.S.C. § 1983, on February 18, 2010. (Doc. 1). Plaintiff also filed a Motion for Leave to Proceed in forma pauperis (Doc. 4). We screened Plaintiff's Complaint pursuant to the Prison Litigation Reform Act of 1995,*fn1 since the PLRA obligates the Court to engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On March 12, 2010, we issued a Report and Recommendation ("R&R") and recommended that all of Plaintiff's claims against Defendants Elmy and Berman be dismissed, and that these two Defendants be dismissed entirely from this case. Further, we recommended that Plaintiff's claim for verbal sexual harassment against Defendant Pugh be dismissed. Additionally, we recommended that Plaintiff's Eighth Amendment denial of proper medical care claim be dismissed. Moreover, we recommended that Defendant LCCF be dismissed. Finally, we recommended that only Plaintiff's Eighth Amendment excessive force claim against Defendant Pugh regarding the pushing incident be allowed to proceed. (Doc. 7).
On August 23, 2010, the District Court issued a Memorandum and Order adopting in part our R&R. (Doc. 12). Specifically, the District Court ordered that:
2. Defendant Luzerne County Correctional Facility is DISMISSED from this action.
3. Plaintiff's Eighth Amendment failure to protect claim against Defendant Berman and Plaintiff's claims of verbal and sexual harassment are DISMISSED.
4. Within twenty-one (21) days of the date of this Order, Plaintiff may file an amended compliant setting forth his Eighth Amendment denial of proper medical care claim, and his First Amendment retaliation claim.
5. Plaintiff's failure to file an amended complaint will result in dismissal of the Eighth Amendment denial of proper medical care claim and the First Amendment retaliation claim, as well as the dismiss of Defendant Berman with prejudice. Plaintiff's case will then proceed only on the Eighth Amendment excessive force claim against Defendant Pugh and the Eighth Amendment failure to protect claim against Defendant Elmy.
6. Plaintiff's request to proceed without pre-payment of fees and costs (Doc. 4) is GRANTED.
7. Plaintiff's Motion for Monetary Damages (Dkt. 8) is DENIED. (Doc. 12, pp. 22-23)(emphasis added).
Since Plaintiff failed to file an Amended Complaint within the specified time, we issued an Order on September 20, 2010, directing the Clerk of Court to issue process to the U.S. Marshal and directing the Marshal to serve Plaintiff's Complaint on Defendants Pugh and Elmy with respect to his Eighth Amendment claims against them. (Doc. 13).
On October 18, 2010, Defendants Pugh and Elmy filed their Waiver of Service forms. (Docs. 14 and 15). Defendants' responses to Plaintiff's Complaint were due on November 29, 2010. (Id.).
On November 29, 2010, Defendants Pugh and Elmy jointly filed an Answer to Plaintiff's Complaint with Affirmative Defenses. (Doc. 22). Defendants' Answer was served on Plaintiff, and it was timely filed.
Discovery then commenced in this case. The discovery deadline was April 14, 2011. (Doc. 38).
Subsequently, Defendants sent Plaintiff a Request for Production of Documents, as well as Interrogatories. On March 21, 2011, Plaintiff filed a 2-page "Petition To Not Be Held Responsible/Obligated To Produce Documents." (Doc. 39). On March 23, 2011, we issued an Order and denied Plaintiff's Doc. 39 Petition. (Doc. 41).
On March 28, 2011, Defendants filed a Motion to Depose Plaintiff. (Doc. 43). On March 29, 2011, we issued an Order and granted Defendants' Doc. 43 Motion. (Doc. 45). Also, on March 28, 2011, Defendants filed a Motion to Amend/Correct the Doc. 38 scheduling order. (Doc.
44). By Order of March 29, 2011, we granted Defendants' Doc. 44 Motion and extended the case management deadlines. (Doc. 46). The discovery deadline was extended to June 14, 2011.
On April 4, 2011, Plaintiff filed a 1-page "Petition to Refuse Deposition and Not to Amend the Case Management Order of March 15, 2011." (Doc. 48). On April 7, 2011, we denied Plaintiff's Petition and found that Defendants were entitled to depose Plaintiff with respect to his remaining claims. See Dover v. Diguglielmo, 181 Fed.Appx. 234, 237 (3d Cir. 2006)(inmate's civil rights case could be dismissed based on his refusal to be deposed). As the Third Circuit stated in Dover, "Defendants [DOC prison employees] had a right to prepare their defense by deposing [Plaintiff inmate]." Additionally, we denied Plaintiff's request that the Court refrain from extending the case management deadlines. As stated, we extended the discovery deadline to June 14, 2011, since we found that the parties required additional time to gather their evidence. (Doc. 50).
On July 14, 2011, after the close of discovery, Defendants Pugh and Elmy timely filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56, a Statement of Material Facts ("SMF") with attached exhibits, Exs. A-F, and a support brief. (Docs. 61, 62 and 63).
On August 4, 2011, Plaintiff filed a 1-page "Petition for Settlement" in which he requests the Court to give him a cash settlement in his present case in the amount of $25,000 or in an amount he and Defendants agree upon. (Doc. 65). We will recommend that Plaintiff's "Petition for Settlement" be denied since the Court has no authority to order Defendants to settle this case. Further, since Defendants have already filed a dispositive motion which is now pending, it appears as though Defendants do not wish to try and settle this case. In any event, if Defendants desire to have settlement talks with Plaintiff, they are certainly free to do so.
On August 23, 2011, Plaintiff filed a 1-page opposition brief to Defendants' Summary Judgment Motion and response to Defendants' SMF. (Doc. 67). Plaintiff did not file a proper response to Defendants' SMF and he did not submit any evidence. Also on August 23, 2011, Plaintiff notified the Court of his new address at SCI-Green in Waynesburg, Pennsylvania. (Doc. 70). Plaintiff also requested more time to respond to Defendants' Summary Judgment Motion and SMF, and he indicated that in the beginning of September 2011, he will receive ten free envelopes to mail his response. Plaintiff has had over one month since his August 23, 2011 letter to file additional responses to Defendants' Summary Judgment Motion and SMF, and to date, Plaintiff has not submitted any further documents in response to Defendants' dispositive motion. On September 15, 2011, Plaintiff filed a second notice of change of address and request for copies of documents filed. (Doc. 69).
On September 23, 2011, Plaintiff filed an 8-paragraph Motion to Compel Defendants respond to his requests for documents and interrogatories along with a 1-page support brief. (Docs. 71 and 72). Plaintiff seeks the Court to direct Defendants to respond to his discovery requests as to whether they "may have had or have ... a problem with drugs and/or alcohol which possibly could have played a part or fueled the heinous assault against [him]." (Doc. 71). In his brief, Plaintiff states that he is requesting the Court to allow him to "look into Defendants' past, their jobs and job performance and if they have any disciplinary actions taken against them by their employer [LCCF] and to see if they have a criminal record." Plaintiff also states he is trying to find out if Defendants have "any other violent episodes in their past." (Doc. 72).
We will recommend that Plaintiff's untimely Motion to Compel (Doc. 71) be denied. As stated, the extended discovery deadline in this case expired on June 14, 2011. Plaintiff's Motion to Compel is over three months late. We also find that Plaintiff's attempt to try and show Defendants' "character," and to show Defendants may have a "checkered past" seeks, in part, documents which are not relevant and which are over broad. Further, Plaintiff states no basis for his request for documents to find out if Defendants "are battling with a drug and/or alcohol addiction and if they've searched help for it in the past." (Doc. 72). In fact, Plaintiff states no basis for any of his requests pertaining to Defendants' "character." Rather, Plaintiff appears to be entirely on a fishing expedition.
In any event, as discussed below, we find that the undisputed evidence in this case shows that Defendants are entitled to summary judgment with respect to Plaintiff's Eighth Amendment claims against them, and we find that Plaintiff's stated discovery requests into Defendants' past and character would not alter the material facts regarding the February 2010 alleged pushing incident at LCCF.
Defendants did not file a reply brief regrading their Summary Judgment Motion. Defendants' Summary Judgment Motion is ripe for disposition.*fn2
II. Summary Judgment Standard.
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed. Rules of Civ. P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. F.R.C.P. 56( c ). An issue of fact is "genuine" only if a reasonable jury, considering the evidence presented, could find for the nonmoving party. Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982) aff'd. mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions,answers to interrogatories, and admissions on file" designate "specific facts showing that there is no genuine issue for trial." F.R.C.P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id. quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976).
Moreover, the Third Circuit has indicated that, "although the party opposing summary judgment is entitled to the 'benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum, or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007) (Nonprecedential)(citation omitted).
In Reynolds v. Federal BOP, 2010 WL 744127, * 3 (M.D. Pa.), the Court stated:
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment should be "rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is material when it "might affect the outcome of the suit under the governing law." Id. After reviewing the evidence, the court makes all reasonable inferences from the evidence in the light most favorable to the non-movant. In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004).
Further, parties filing Statements of Material Facts or answers to SMF must be in accordance with the Middle District of Pennsylvania's Local Rule 56.1, M.D. Pa. In McCoy v. Edwards, 2009 WL 1794749, * 2 (M.D. Pa. 2009), the Court stated as follows with respect to M.D. Pa. LR 56.1:
A motion for summary judgment filed pursuant to F.R.C.P. 56, shall be accompanied by a separate, short, and concise statement of material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph as to which it is contended that there exists a genuine issue to be tried. Statements of material facts in support of or in opposition to, a motion shall include references to the parts of the record that support the statements. (Emphasis added). All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
III. Statement of Material Facts.
As mentioned, Plaintiff failed to file a proper paragraph-by-paragraph
Defendants' SMF as required by Local Rule 56.1, M.D. Pa. In fact,
Plaintiff did not submit a specific response to any of Defendants
11-paragraph SMF with his combined opposition brief. (Doc. 67).
Additionally, Plaintiff did not submit any evidence to dispute the
Defendants' SMF and their attached evidence, which largely consists of
Plaintiff's prison medical records and the Affidavits of Defendants,
as well as an excerpt from Plaintiff's deposition testimony, which is
cited to in their SMF. (Doc. 62). Thus, Plaintiff failed to follow
Local Rule 56.1, M.D. Pa., as he was required to do.*fn3
Defendants, however, properly filed their SMF according to
Local Rule 56.1. (Doc. 62). We find that ¶'s 6-11 are the relevant SMF
of Defendants with respect to Plaintiff's two remainingclaims. Defendants cited to evidence in the record with respect to ¶'s
6-11 of their SMF and they are undisputed. (Doc. 62, pp.
3-11).*fn4 Therefore, we find Plaintiff has not
properly responded to Defendants' SMF as required by LR 56.1 of
M.D.Pa. See Cyrus v. Laino, Civil No. 08-1085, M.D. Pa.; Cyrus v.
Freynik, Civil No. 08-2278, M.D. Pa.; Michtavi v. Martinez, 2009 WL
5172962 (M.D. Pa.); Accolla v. U.S., 2009 WL 3625383 (M.D. Pa.),
affirmed 2010 WL 763550 (3d Cir.)(Third Circuit found that since
Plaintiff inmate in civil rights action did not properly respond to
prison staff Defendants' statement of facts as required by L.R. 56.1,
M.D. Pa., Defendants' statement of facts were undisputed); Velentzas
v. U.S.A., Civil No. 07-1255, M.D. Pa., 2010 WL 3896192 (8-31-10).
Because of Plaintiff's failure to properly deny Defendants' Statement
of Facts, we accept ¶'s 6-11 of Defendants' Statement of Facts since
they are all supported by their evidence (Doc. 62, ¶'s 5-11 and Exs.
A-F) and since Plaintiff has not responded to them.
In Hodge v. United States, 2009 WL 2843332 (M.D. Pa.), the Court found that Defendants' SMF, which were in accordance with LR 56.1, were deemed admitted not only because the Plaintiff, an inmate proceeding pro se, failed to follow LR 56.1, but also because the Defendants properly cited to evidence on record and Defendants' evidence was not disputed by Plaintiff. See Hodge at *13. The Court stated:
Plaintiff received a copy and explanation of the Local Rules pursuant to the court's standing practice order for actions by pro se plaintiffs. Examinations of both plaintiff's Answer to Defendants' Statement of Facts and the exhibits plaintiff filed separately reveal that neither filing constitutes the paragraph-by-paragraph response to the moving party's statement of material facts that LR 56.1 plainly requires and of which Plaintiff Hodge had ample notice. As such, the court will adopt the magistrate judge's recommendation that Defendant's SMF should be deemed admitted under LR 56.1 and his reliance on those facts for the purpose of assessing Defendants' motion for summary judgment.
Further, we have reviewed ¶'s 6-11 of Defendants' SMF, and all of the facts stated therein are accurately supported by reference to their evidence, Doc. 62, Exs. C-F. Defendants' undisputed relevant SMF are as follows:
6. The sworn Affidavit of James Larson is attached hereto [Doc. 62] as Exhibit "C". Major Larson's sworn testimony, which is undisputed, is as follows:
1. I have reviewed the lawsuit filed by Christian
Jones in the case of Christian Jones v. Luzerne County Correctional Facility, et al., No. 3:10-cv-359.
2. I have reviewed the facts and circumstances related to the Complaint filed by Christian Jones.
3. Attached to this Affidavit as Exhibits "A" and "B" respectively are the only two grievances filed by Christian Jones during the relative [sic] time frame for the incidents which have been alleged in this Complaint. In each instance, these grievances were processed and a hearing was held relating to the complaints registered by Inmate Jones. No other grievances have been submittedby Christian Jones and, for the most part, Christian Jones failed to comply with the grievance procedure in place at the Luzerne County Correctional Facility.
4. Upon admission to the Luzerne County Correctional Facility, all inmates, including those inmates who are classified in the work release program and provided with an Inmate Handbook and are advised of the grievance procedure that exists at the prison.
5. I have reviewed the specific allegations of the Complaint which is the subject of this lawsuit.
6. The allegation by Christian Jones that he was repeatedly subjected to physical abuse and verbal harassment at the hands of Correctional Officers affiliated with the work release program, specifically Captain James Pugh and Correctional Counselor Louis Elmy are false.
7. Any disciplinary action which was undertaken relative to Christian Jones was precipitated by Jones' failure to abide by the ...